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Law of Nations Get-Around

Monday, January 7, 2013
By Bill Marks, Santa Barbara

According to the Associated Press (Jan. 4, 2013) President Obama has taken time out from his island vacation to issue the following legal opinion:

“Decisions regarding the disposition of detaineees captured on foreign battlefields have traditionally been based on the judgment of experienced military commanders and national security professionals without unwarranted interference by members of Congress.” Clearly the tradition he is invoking here is not the one established by the Constitution but rather by our government’s recent tendency to ignore that document in order to wage  it’s no-holds-barred war on terrorism. Article I gives to Congress alone the power “ To define and punish Piracies and Felonies committed on the high Seas, and offenses against the Law of Nations; and, “To declare war, grant letters of Marque and Reprisal, and make Rules concerning captures on Land and Water.”

By not asking Congress for a Declaration of War, President Bush hoped to  remove suspected terrorists from the shelter of the Geneva Convention, the  “Law of Nations” which protects prisoners of war  from being tortured. While President Obama has restored the conventional protections against torture, the prisoners at Guantanamo remain outside the guarantees of the Constitution, which include Habeus Corpus and the right to a fair trial. Here it is worth noting that, like pirates, terrorists are non-state actors, whose disposition the Constitution assigns to Congress (that bunch of amateurs)  and not to the president, a group of generals, or, heaven forfend, “national security professionals.”

The Constitution is a document that presidents and members of Congress have both sworn to uphold. Had, following 9/11, they done so, the problem of how to close the book on Guantanamo would have been solved beforehand by not opening this haven from the law in the first place. It seems clear that the Articles of the Constitution will just be words on paper, unless we the people start demanding that our elected representatives exercise and not give away in a panic the power these words give to them.